De Jong and Others v Trustees of the Simcha Trust and Another (22197/12) [2012] ZAWCHC 387 (12 December 2012)

De Jong and Others v Trustees of the Simcha Trust and Another (22197/12) [2012] ZAWCHC 387 (12 December 2012)

The court found that the applicants acted without undue delay, given the chronology of events and the respondent's invitation to negotiate before litigation. The applicants established urgency and a prima facie right to review the City's approval of the building plans, particularly due to doubts about whether the building control officer complied with statutory duties by providing a proper, reasoned recommendation. The court held that the applicants face real prospects of irreparable harm if construction continues, as the respondent could build itself into an impregnable position, diminishing the effectiveness of any future review. The balance of convenience favoured the applicants,...

Citation
[2012] ZAWCHC 387
Parties
Applicant: Madelene De Jong; Applicant: Gregory Nigel Joseph White; Applicant: Marthinus Johannes Els; Applicant: Margaret Jean Wouters; Applicant: Joshua Samuel Johnson South; Applicant: Nicole Genevieve Kyte; Applicant: Jacques Schmidt; Applicant: Suzanne Wehmeyer (Schmidt); Applicant: Exclusive Access Trading 585 (Pty) Ltd; Applicant: Emanuel Feguera De Abreu; Applicant: Shiraaz Joosub; Applicant: Barrister Investments (Pty) Ltd; Applicant: Amber Van Der Walt; Applicant: Sarah Elizabeth Hallas; Applicant: Joao Jose Ribeiro Da Cruz; Applicant: Skye Middleton; Applicant: Richard Daniel Kyte; Respondent: Trustees of the Simcha Trust (IT 1342/93); Respondent: City of Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
12 December 2012
Case Number
22197/12
Procedural Posture
Urgent Application / Application for Interim Interdict Pending Review
Outcome
Interim interdict granted; first respondent prohibited from further construction pending review.
Judges
Dolamo
Legal Topics
Building Plan Approval, Split Zoning, Derogation of Value, National Building Regulations, Interim Interdict, Promotion of Administrative Justice Act
Administrative Law Land and Property Civil Procedure Building Plan Approval Split Zoning Derogation of Value National Building Regulations Interim Interdict +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 17 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Madelene De Jong

Applicant

Gregory Nigel Joseph White

Applicant

Marthinus Johannes Els

Applicant

Margaret Jean Wouters

Applicant

Joshua Samuel Johnson South

Applicant

Nicole Genevieve Kyte

Applicant

Jacques Schmidt

Applicant

Suzanne Wehmeyer (Schmidt)

Applicant

Exclusive Access Trading 585 (Pty) Ltd

Applicant

Emanuel Feguera De Abreu

Applicant

Shiraaz Joosub

Applicant

Barrister Investments (Pty) Ltd

Applicant

Amber Van Der Walt

Applicant

Sarah Elizabeth Hallas

Applicant

Joao Jose Ribeiro Da Cruz

Applicant

Skye Middleton

Applicant

Richard Daniel Kyte

Applicant

Trustees of the Simcha Trust (IT 1342/93)

Respondent

City of Cape Town

Respondent

Procedural Posture

Urgent Application / Application for Interim Interdict Pending Review

Legal Issues

  1. 1 Whether the applicants acted with sufficient urgency in bringing the application for interim relief.
  2. 2 Whether the approval of the building plans by the City of Cape Town was unlawful and susceptible to review.
  3. 3 Whether the applicants established a prima facie right to interim interdictory relief.

Ratio Decidendi

The court found that the applicants acted without undue delay, given the chronology of events and the respondent's invitation to negotiate before litigation. The applicants established urgency and a prima facie right to review the City's approval of the building plans, particularly due to doubts about whether the building control officer complied with statutory duties by providing a proper, reasoned recommendation. The court held that the applicants face real prospects of irreparable harm if construction continues, as the respondent could build itself into an impregnable position, diminishing the effectiveness of any future review. The balance of convenience favoured the applicants,...

Court Disposition

Interim interdict granted; first respondent prohibited from further construction pending review.

Orders

  • The first respondent is interdicted from carrying out or allowing any further construction work on erf 5284 Cape Town situate at 41 Buitenkant Street, Cape Town pending final determination of an application to be commenced by the applicants within 14 days for the review of the decision of the second respondent of 20...
  • Costs of this application are to stand over for determination in the intended review application.